Mangoola Coal Operations Pty Limited v Construction, Forestry, Mining and Energy Union

[2017] FWC 2771

[2017] FWC 2771

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

Mangoola Coal Operations Pty Limited
v
Construction, Forestry, Mining and Energy Union
(C2017/2623)

COMMISSIONER SAUNDERS NEWCASTLE, 23 MAY 2017

Alleged industrial action at Mangoola Coal Operations Pty Limited – failure of notice of proposed action to comply with s.414(6). Order made under s.418.

[1] On the evening of Thursday, 18 May 2017, I heard an urgent application by Mangoola Coal Operations Pty Limited (Mangoola) for an order under s.418 of the Fair Work Act 2009 (Cth) (Act) that planned industrial action stop and not be organised by the CFMEU. I made such an order on Friday, 19 May 2017, 1 at which time I informed the parties that I would publish my reasons for doing so early this week. These are my reasons.

Issues agreed and in dispute

[2] There is no dispute between the parties and I am satisfied on the evidence that:

(a) employees, other than “staff”, who work at the Mangoola open cut mine (Mine) are covered by the Mangoola Coal Greenfields Enterprise Agreement 2010 (Enterprise Agreement);

(b) the nominal expiry date of the Enterprise Agreement was 1 July 2014;

(c) on 22 March 2017, Senior Deputy President Hamberger made a protected action ballot order 2 in relation to employees at the Mine;

(d) a ballot was conducted by the Australian Electoral Commission and, on 13 April 2017, the results of the ballot were declared. Various forms of industrial action were authorised by a majority of relevant employees;

(e) on 10 May 2017, Senior Deputy President Hamberger extended the period during which industrial action was authorised by the ballot order issued on 22 March 2017 for a further 30 days; 3

(f) on 15 May 2017, the CFMEU gave Mangoola written notice of the intention of members of the CFMEU who are employed by Mangoola at the Mine to take protected industrial action (Notice); 4

(g) the proposed industrial action the subject of the Notice falls within the scope of industrial action approved by the relevant employees in the ballot; and

(h) the proposed industrial action the subject of the Notice was organised by the CFMEU.

[3] The sole issue for my determination is whether the Notice satisfies the requirements of s.414(6) of the Act. If it does, the proposed action the subject of the Notice would be “protected industrial action”. If it does not, the proposed action the subject of the Notice would not be “protected industrial action” because it would not meet the common requirements for industrial action to be “protected industrial action”, 5 with the result that I must make an order pursuant to s.418 of the Act that the industrial action stop and not be organised.

Notice requirements

[4] Section 414(6) of the Act governs the requirements of the content of a written notice given by a bargaining representative of an employee to an employer in relation to “employee claim action”:

“A notice given under this section must specify the nature of the action and the day on which it will start.”

[5] In EnergyAustralia Yallourn Pty Ltd v CFMEU, 6 a Full Bench of the Fair Work Commission (Commission) gave detailed consideration to the principles relevant to the question of whether a notice satisfies the requirements of s.414(6) of the Act (citations omitted):

“[36] A number of decisions of the Federal Court of Australia and the Commission have considered the role and purpose of a notice of intention to take protected action and the adequacy of the content of such notices. We refer to those we believe to be the key decisions and we do so in the chronological order in which they were published. The first is Davids Distribution. The proceeding which that appeal related to was an application which had been made by the union under the then s.170MU of the WR Act asserting the employer had dismissed employees wholly or partly because they were engaged in protected action. The employer had dismissed employees who had been involved in strikes and picketing and the question that arose was if picketing came within the definition of industrial action and could therefore be protected action. The appeal was against the grant of an interlocutory injunction restraining the employer from terminating the employment of its employees.
[37] The Full Court found that picketing was not industrial action and, at paragraph [77], said that conclusion made it “strictly unnecessary” to determine the issue about whether the notice was in terms which made it effective to attract the immunity for protected action provided by the WR Act. However, it decided to consider that matter commenting that the issue was of general importance and had been fully argued before it. The notice had been given under the then s.170MO(5) of the WR Act. We here interpose to note that we have earlier reproduced that section and note that it was in similar, but not identical terms to s.414(6). About the terms of s.170MO(5) the Court said:

‘[84] The question addressed by North J in the lengthy passage just quoted is one of considerable difficulty, about which people may reasonably reach different conclusions. Parliament did not indicate what degree of specificity it intended by the term “nature of the intended action”. To interpret this term, on the one extreme, as requiring no more than an indication of industrial action, as argued by NUW, would be significantly to devalue s170MO(5); the notice would provide little information. To interpret it, on the other extreme, as requiring precise details of every future act or omission would be to impose on the giver of a notice an obligation almost impossible to fulfil. Industrial disputes are dynamic affairs. Decisions as to future steps often need to be made at short notice, sometimes in response to actions of the opposing party or other people, including governments, and changing circumstances. It would be a major, and unrealistic, constraint on industrial action to require a party to specify, three clear working days in advance, exactly what steps it would take. An unduly demanding interpretation of s170MO(5) would seriously compromise the scheme of Division 8 of Part VIB of the Act; it would be difficult for a party to an industrial dispute to obtain the protection contemplated by the Division.
...
[86] Another reason for rejecting North J’s approach is that it places a premium on legalism. Framers of notices would need to undertake a careful analysis of the definition of “industrial action”, in the way North J did, in order to identify the paragraph which best fits the contemplated activity. Bearing in mind that notices will often, perhaps ordinarily, be prepared by non-lawyers acting without legal advice, it is unlikely Parliament intended that result.
[87] We think s170MO(5) was designed to ensure that industrial disputants who are to become affected by protected action, in relation to which their usual legal rights are significantly diminished, are at least able to take appropriate defensive action. For example, an employer may operate a sophisticated item of equipment that will be damaged if precipitately shut down. If warned in advance of a ban that might affect the continued operation of that plant, the employer might choose a controlled shut down during the period of the notice. More commonly, perhaps, an employer might use the notice time to communicate with suppliers and customers, and thereby reduce the consequences for them of the notified industrial action. Very often, the recipient of the notice will respond in a way that has a legal dimension. For example, a union might react to a notice by an employer of intent to lockout some employees by giving notice that all employees will strike indefinitely as from the commencement of the lockout. Similarly, an employer might respond to an employees' notice of bans by giving notice of a lockout of some or all employees.
[88] It will be apparent we think it necessary, and sufficient, for parties to describe the intended action in ordinary industrial English; for example, “an indefinite strike of all employees”, “a lockout of all employees employed in the AB fabrication plant”, “a ban on overtime”, “a ban of the use of MN equipment”, “rolling stoppages throughout the mine”, “a ban on the servicing of delivery vehicles.’

[38] Davids Distribution was considered and applied by a Full Bench of Fair Work Australia in Telstra Corporation Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Telstra). 
[39] The Full Bench said:

‘[12] Before turning to the notice in this case it is appropriate to make some observations about the construction of s.414. The first point to note is that the obligations in ss.414(1) and (6) are not cast in terms of an intention to take industrial action but in more positive terms. This is a point of contrast with the language of s.170MO of the WR Act, exemplified by s.170MO(5) which we have set out above. The second point is that in considering whether the notice meets the requirement to specify the industrial action, it is necessary to have regard to the purpose of the notice requirement and the relevant circumstances, in particular the nature of the employer’s undertaking. As to purpose, there is little doubt that the purpose of the notice requirement is to give the employer the opportunity to respond to the action by making relevant preparations. The response may involve making arrangements to deal with unavailability of labour, including making appropriate arrangements in relation to customers, suppliers and other contractors. Whether the notice is adequate may depend on the nature of the employer’s operations including their size, the number of employees, the number of locations, the time at which the action is to occur and the employees potentially taking the industrial action. The following passage from the reasons for decision in Davis Distribution, a case concerned with the interpretation of s.170MO(5), is apposite:

‘[87] We think s 170MO(5) was designed to ensure that industrial disputants who are to become affected by protected action, in relation to which their usual legal rights are significantly diminished, are at least able to take appropriate defensive action. For example, an employer may operate a sophisticated item of equipment that will be damaged if precipitately shutdown. If warned in advance of a ban that might affect the continued operation of that plant, the employer might choose a controlled shutdown during the period of the notice. More commonly, perhaps, an employer might use the notice time to communicate with suppliers and customers, and thereby reduce the consequences for them of the notified industrial action. Very often, the recipient of the notice will respond in a way that has a legal dimension. For example, a union might react to a notice by an employer of intent to lock out some employees by giving notice that all employees will strike indefinitely as from the commencement of the lockout. Similarly, an employer might respond to an employees' notice of bans by giving notice of a lockout of some or all employees.’

[40] The Full Bench also said:

‘[18] In concluding it should be emphasised that whether a particular notice meets the requirements in s.414(6) will depend upon the terms of the notice and the industrial context. Every case is different and each notice must be looked at having regard to all of the relevant considerations.’

[41] The next relevant decision is the Federal Court decision of Justice Merkel in Construction, Forestry, Mining and Energy Union v Yallourn Energy Pty Ltd (Yallourn). This matter concerned an argument about the adequacy of a s.170MO(5) notice given by the CFMEU to the employer. The following extracts from that decision were referred to by either the Appellant or the CFMEU.

‘[17] In Yallourn Energy I considered whether a notice relating to certain bans and rolling stoppages at the employer's sites complied with s 170(5). I expressed the view (at 214) that, as legal immunity is conferred in respect of protected industrial action, it is of obvious importance that the nature of the proposed action be specified accurately, as a failure to do so will be likely to lead to uncertainty and litigation as to whether the action taken subsequent to the notice is protected under the Act. Accordingly, it is critical that the particularity be sufficient to enable the parties to be aware of the nature of the intended action and whether the action actually taken in reliance on the notice is or is not protected action when it is taken.
...
[20] In each of the cases to which I have referred the issue related to whether the generality of the notice was such that it had failed to state with sufficient clarity the nature of the intended action. A different issue arises in the present case as the notice relates to action to achieve a particular outcome rather than to action to be taken irrespective of the outcome. Accordingly, it was contended by counsel for Yallourn Energy that the notice relates to action that might be taken, rather than the action intended to be taken, and therefore it failed to describe the nature of the "intended action": see Davids Distribution at 495.
[21] Whether a notice is sufficient to comply with s 170MO(5) can involve questions of fact but will more usually involve questions of degree. When assessing such questions, as was stated in Davids Distribution at 495, it is important that the inquiry does not place a premium on legalism; rather the inquiry is as to what the notice would convey "in ordinary industrial English" to the reader. Further, the purposes for which the notice is given (to which I have referred above) can be relevant factors in determining whether a notice adequately or sufficiently conveys the nature of the industrial action intended to be taken: cf A1 v National Crime Authority (1996) 67 FCR 464 at 479-481 and National Crime Authority v A1 (1997) 75 FCR 274 at 277 and 294.’

[42] Yallourn Energy submitted to Justice Merkel that the notice stated the outcome of the industrial action intended to be taken, rather than the nature of that action which, it argued, could take a number of different forms, none of which were specified in it. This is an argument run again by the Appellant in this appeal. About this His Honour said:

‘[30] Yallourn Energy contended that other steps, namely those specified in paras 61(d), (e), (f) and (g) and 62(b), (e) and (f) of Mr Smith's affidavit could also be utilised to reduce generation and coal tonnage. While the evidence discloses that certain steps, such as overtime and repair bans, could, together with other factors, contribute to a limiting or restricting of generation or capacity, in my view the specificity of the outcomes of the intended action would not be taken by the employer to embrace action which is not capable of achieving those outcomes. On a legalistic view, the notice may be taken to be capable of extending to such action, but it is unlikely that it would be taken to convey to the reader in "ordinary industrial English" that that was the action intended to be taken. The specificity with which the output and capacity is stated would enable the employer, with a relatively high degree of certainty, to identify the nature of the industrial action that is intended to be taken by members of the Union.
[31] Further, the Union's affidavit evidence, which was not disputed, was that Yallourn Energy would understand the notice to refer to the direct action as set out in either the Union formulations or the Yallourn Energy formulations because that is how it would give operating instructions if it sought to achieve the specified outputs. Mr Smith of Yallourn Energy had no difficulty in stating the action that is necessary to achieve the stated outcomes. Thus, upon receipt of the notice, Yallourn Energy would be well placed to take such defensive action as it may be advised to take. While the precise action to be taken is not stated, and therefore the defensive action may not be able to be precisely formulated, that limitation is inherent in the requirement that it is only necessary to notify the employer of the nature of the intended action, rather than the actual intended action. Yallourn Energy would also be well placed to determine whether the action actually taken in reliance upon the notice is or is not protected action when it is taken.
[32] It is significant that the notice states specific output and capacity figures which would be understood by the employer to be achievable only by the taking of well known and well understood action by employees who are members of the Union. A quite different situation would apply if the notice stated that limitations or restrictions were to be imposed on output or capacity up to a stated figure, rather than to a stated figure. A notice in that form would be likely to be so general that it would fail to convey to the reader the nature of the intended action. Such a notice would convey to the reader the action that might be taken, rather than the action intended to be taken. In that event, the notice would not comply with s 170MO(5).
[33] Finally, a danger inherent in stating an outcome rather than specifying the action designed to achieve it, is that the intended action may not be able to be clearly identified as protected action until after, rather than before, it is taken. If that were the case, the notice would be unlikely to comply with s 170MO(5) as, inter alia, it would render nugatory the purpose of giving 3 days prior notice in respect of the intended action. However, in the present case, as the steps that are capable of achieving the stated outcomes were well known and understood by Yallourn Energy, they were able to be identified as such prior to, rather than after, the steps being taken.
[34] In those circumstances I have formed the view that the notice sufficiently and adequately states the nature of the intended action. Accordingly, on the basis of the material presently before the Court, the preferable view, albeit on a prima facie basis, is that the notice does comply with s 170MO(5).’

[43] The next decision is of Justice Barker in Alcoa of Australia Limited v The Australian Workers’ Union (Alcoa). The issue there was whether the applicant was entitled to an interlocutory injunction restraining the union from issuing a notice of purported protected industrial action pursuant to s.414 of the FW Act if the notice failed to specify the commencement time and duration of the proposed industrial action described in the notice.
His Honour noted that he had not been referred to any case in which the issue about specifying the duration of proposed industrial action with particularity, had been finally decided. He said:

‘[33] For myself, while I accept the admonition of Goldberg J that a matter may not be so simply decided, one would have thought, taking the text of s 414(6) at face value, that because the Parliament has chosen to impose some notice requirements of industrial action when, prior to the Workplace Relations Act 1996 (Cth), there were none, a court should be slow, in effect, to travel beyond the plain words of the provision. The requirement to specify the “nature of the action” and then separately “the day it will start”, do not, of themselves, suggest to me that it is also necessary to particularise the commencement and finishing time of the proposed action in a notice. For the Court to supply this degree of particularisation might be seen to supplant the role of the legislature in prescribing industrial behaviour, a matter of continuous contention over the course of this country’s history since Federation in 1901.
[34] Nonetheless, along with Goldberg J and Gilmour J, I accept that there may well be an argument, particularly in the circumstances of a particular case, that in specifying the “nature of the action”, having regard to a particular action, it may in some cases be necessary to say something about the commencement and/or the conclusion times of the industrial action. But it is not a requirement that, to my mind, immediately leaps to the eye from the text of s 414(6).

[35] I consider, therefore, there is force in a submission made on behalf of the union in this case that s 414(6) should be construed with an understanding that under the FW Act the respondent has the right to engage in protected industrial action. Generally, the reason for industrial action is to cause a degree of inconvenience and expense to the employer as a legitimate bargaining tool. The fact that the applicant may suffer a loss of profits and its operation and staff may be inconvenienced is no reason of itself to find that a notice should as specific as the applicant in this case would like it to be.’

[44] The next case we should refer to is the decision of Justice Greenwood in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Pinnacle Career Development Pty Ltd (Pinnacle). The union had sought a declaration that the employer had contravened provisions of the FW Act by taking certain action against employees who had participated in protected industrial action. His Honour’s reasons addressed s.414(6) of the FW Act. In the course of those reasons he approved the comments that had been made by the Full Bench in Telstra. Relevant extracts from the judgment are as follows:

‘[56] The Statement of Agreed Facts does not convey any sense of the scope or scale of the respondent’s undertaking although it may properly be inferred that an enterprise that provides vegetation inspection services and pruning and removal services is not a large scale corporation. In Telstra at [12] the Full Bench observed that the purpose of the notice requirement is to give the “recipient” (put more generally) of the notice an opportunity to respond to the action by making relevant preparations or considering a particular response. That purpose is entirely consistent with the observations about the purpose of notice provisions expressed by the Full Court of the Federal Court in Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463 at [87]. In Telstra at [12], the Full Bench also noted that “[w]hether the notice is adequate may depend on the nature of the employer’s operations including their size, the number of employees, the number of locations, the time at which the action is to occur and the employees potentially taking the industrial action”. In Telstra, the question in issue was the adequacy of notice given on behalf of employees in circumstances where Telstra employed 34,000 employees.’

[45] His Honour referred to and commented upon the wording of the notice in Telstra and then said:

‘[58] These observations suggest that the adequacy of a notice for the purposes of s 414(6) must be examined in context. An assessment of adequacy must take account of all the circumstances and examine expressions used in the context of whether the concepts embodied in the expressions are well recognised in workplace relations. The adequacy of the notice must take account of the practical applied circumstances of the workplace and whether the purpose of a notice is served by giving the addressee an understanding of what is contemplated and when it will occur so as to provide the recipient with an opportunity to consider his or her position and act or respond in a particular way (or as in this case, engage in the foreshadowed conduct set out in the notices “RF3” and “RF7” to which the challenged notices respond).’”

[6] I have applied these principles in determining whether the Notice satisfies the requirements of s.414(6) of the Act.

Notice given by the CFMEU

[7] The Notice given by the CFMEU to Mangoola on 15 May 2017 was in the following terms:

“In accordance with the requirements of section 414 of the Fair Work Act 2009, I give notice of the intention of members of the Construction, Forestry, Mining and Energy Union who are employed by Mangoola Coal Operations Pty Ltd at Mangoola Open Cut mine to take protected industrial action in the form of:-

1. Four stoppages of work each of two hours in duration that may be consecutive on Friday 19 May 2017.

2. Four stoppages of work each of two hours in duration that may be consecutive on Saturday 20 May 2017.

3. Four stoppages of work each of two hours in duration that may be consecutive on Sunday 21 May 2017.

4. Four stoppages of work each of two hours in duration that may be consecutive on Monday 22 May 2017.

5. Four stoppages of work each of two hours in duration that may be consecutive on Tuesday 23 May 2017.

6. Four stoppages of work each of two hours in duration that may be consecutive on Wednesday 24 May 2017.

7. Four stoppages of work each of two hours in duration that may be consecutive on Thursday 25 May 2017.”

Relevant circumstances

[8] Mr Tony Israel, Operations Manager at the Mine, gave oral evidence in support of Mangoola’s application for a s.418 order. The CFMEU cross examined Mr Israel and tendered some documents into evidence, but did not call any witnesses in support of its case.

[9] Mr Israel gave evidence in relation to the relevant circumstances, including the nature of Mangoola’s undertaking at the Mine, the way in which that undertaking operates, and the difficulties associated with the Notice of proposed action given by the CFMEU.

[10] The Mine opened in about 2011. It produces about 13 million tonnes of coal per year.

[11] The Mine covers an area of about 3,500 hectares. It is comprised of three departments or areas:

(a) the Mining Department, which is responsible for the removal of overburden and extraction of coal by utilising drill and blast and truck and shovel mining methods. There are three pits in the Mine: south, main central, and main west;

(b) the Maintenance and Engineering Department, which is responsible for ensuring Mangoola’s plant and equipment (including about 60 large excavators) is properly maintained and operational. The Maintenance and Engineering Department conducts planned and unplanned maintenance on every day; and

(c) the Coal Handling Preparation Plant (CHPP), which is responsible for processing and preparing extracted coal for sale. After coal is transported to the CHPP by truck, it is crushed and then washed. The coal is then placed into a stockpile near the rail loading point. The coal is transported by rail from the Mine to the port of Newcastle, where it is ultimately loaded on a ship for export.

[12] There are about 237 employees who are covered by the Enterprise Agreement. Mangoola is aware from the results of the protected action ballot recently undertaken that about 172 of the 237 employees are members of the CFMEU. In addition to direct employees of Mangoola, there are about 30 to 40 employees of a labour hire firm working across the Mine at any one time. There are about 40 “staff” employees, who are not covered by the Enterprise Agreement but who are employed by Mangoola to work at the Mine, principally in supervisory or managerial roles.

[13] There are about 200 employees working in the Mining Department, about 40 employees working in the Maintenance and Engineering Department, and about 32 employees working in the CHPP.

[14] Save for employees working in the drill and blast team, employees working in the Mining Department work a 7 day, 4 panel roster on rotating shifts (rotating between day shift and night shift). Day work commences at 6:30am and ceases at 6:50pm. Night shift commences at 6:30pm and finishes at 6:50am. Employees working in the drill and blast team work on a “shotfirer’s roster”, which is day shift only, from 6:00am until 3:00pm Monday to Friday each week.

[15] Apart from employees working on the “heavy crew” undertaking scheduled shut down maintenance, employees working in the Maintenance and Engineering Department work a 7 day roster on rotating shifts (rotating between day shift and night shift). Day work commences at 6:30am and ceases at 6:50pm. Night shift commences at 6:30pm and finishes at 6:50am. Employees working in the “heavy crew” work day shift only.

[16] Employees working in the CHPP work a 7 day, 4 panel roster on rotating shifts (rotating between day shift and night shift). Day work commences at 6:20am and ceases at 6:40pm. Night shift commences at 6:20pm and finishes at 6:40am.

[17] The three Departments in the Mine are integrated. Once the overburden is drilled and blasted, it is removed and hauled by truck to a dump area. The coal is then hauled by truck to the CHPP, where it is crushed, washed and placed into a stockpile in readiness for transportation by rail. The Maintenance and Engineering Department undertakes a whole range of planned and unplanned maintenance work on plant and equipment to ensure production can continue across the Mine.
[18] The blasting of overburden at the Mine is undertaken in accordance with a plan which is developed months ahead of time. The drill and blast function is a key driver of production at the Mine. The blast areas are large (often around 500m x 100m). There are a number of environmental and regulatory reasons why blasts can only take place at particular times. For this reason, blasts are often planned weeks in advance.

[19] The mining of coal is an inherently risky activity. Risks at the Mine arise in a number of ways, including in connection with the drilling and blasting of large volumes of overburden, the operation of large pieces of plant and equipment, interactions between different forms of plant and equipment and between people and plant and equipment, and undertaking maintenance and repair work on plant and equipment at the Mine. Mangoola has, and is required to have, a range of measures, processes and procedures to control such risks.

[20] Mr Israel gave evidence, which I accept, of the safety related risks that would arise at the Mine if stoppages of work were undertaken pursuant to the Notice. In particular, I accept Mr Israel’s evidence that the following types of safety risks would arise if stoppages of work were undertaken at the Mine without any prior notice of at least the commencement time of the stoppage of work on a particular day:

(a) if the shotfirers commence a stoppage of work, without any prior notice of the commencement time of the stoppage, when they are part way through preparing a “shot”, as a “shot” is about to go off, or in the process of a “shot” being blasted, there would be considerable risk to the safety of those at the Mine. Part of the process of preparing a “shot” is known as “tying up” the “shot”. It involves connecting the explosives to the detonating device. If an employee stops work part way through the process of “tying up” the “shot”, there is the risk of a mistake being made when the “tying up” work is continued at a later time. The risk is magnified considerably if the employee(s) who have been undertaking the work do not go back to work between the commencement of their stoppage of work and the end of their shift, with the result that there may be no hand-over of work to the next employee(s) who will come in to complete the process of “tying up” the “shot”. Further, if a “shot” is left “tied up” or partly “tied up” for an extended period of time, there is an increased chance of a noxious gas being produced. The risks associated with a shotfirer ceasing work without prior notice as a “shot” is about to go off or in the process of a “shot” being blasted are obvious;

(b) if a maintenance employee ceases work without prior notice of the commencement time of their stoppage part way through a maintenance task, there is considerable scope for an increased risk to safety in the workplace. For example, maintenance tasks on plant and equipment at the Mine can involve complex isolation of various parts of the plant or equipment. The stoppage of work part way through a complex isolation needs to be carefully managed to ensure the health and safety of those in the area, including maintenance employees who may not stop work on the basis that they are not members of the CFMEU or have elected not to take industrial action on the particular day. Such risks are magnified further if the maintenance employees who take such industrial action do not return to work prior to the end of their shift, with the result that there may be no hand-over of work to the next employee(s) who will come in to continue the maintenance or repair work. By way of a further example, if a maintenance employee stops work (without prior notice) part way through a heavy lift of plant or equipment, there may be considerable risks to the health and safety of those who are, or come, in the vicinity; and

(c) if an operator of a truck, excavator or other piece of large plant or equipment in the Mining Department ceases work, they will likely want to access a light vehicle to be transported to a crib hut or out of the Mine. In circumstances where other operators 7 of plant and equipment are likely to continue working and may not be aware that members of the CFMEU have stopped work, there is likely to be an increase in the interaction between heavy vehicles and light vehicles in the Mine and between operators disembarking plant and equipment and vehicles or plant and equipment which continues to operate. Such interactions are one of the important safety risks Mangoola has to manage at the Mine. It would be difficult for Mangoola to manage such risks at the Mine if it was not aware of at least the commencement time of the stoppage of work. For example, given the large size of the workplace, the supervisors on duty may be undertaking a statutory inspection or other task some considerable distance away from the location in the Mine where various operators have stopped work. It is the supervisors who are primarily responsible for managing the risks associated with interactions between heavy and light vehicles, between pedestrians and vehicles or plant and equipment, and in connection with the parking-up of plant and equipment and transportation of employees to a crib hut or other suitable location. A supervisor’s ability to give the appropriate instructions to manage such risks would be reduced significantly if they were in a different location of the Mine at the commencement of the stoppage and had no prior notice that work may stop at that time. Further, if the supervisor is not in the area of the Mine where work is being stopped without prior notice, it may take some time for the supervisor to become aware of the stoppage of work. It may also take some time for employees who are not taking the industrial action to become aware that other employees have stopped work. For example, a truck driver may be on a 20 minute haulage trip at the time work is stopped and may take some time to become aware that work has stopped by other employees at the Mine. For these reasons, I accept Mangoola could not manage the risks adequately by simply instructing all employees at the Mine to cease work once members of the CFMEU stop work.

Submissions

[21] Mangoola submits that there are four issues or vices associated with the Notice:

(a) First, Mangoola cannot ascertain from the Notice whether any stoppage of work on a particular day will be on day shift or night shift. For each date the subject of the Notice (19 to 25 May inclusive), there are three shifts (or parts of shifts) worked: the second half of night shift (from midnight to 6:50am), day shift (from 6:30am until 6:50pm), and the first half of night shift (from 6:30pm until midnight). The Notice does not specify whether the proposed action will happen on any, all, or just some of those three shifts (or parts of shifts);

(b) Secondly, Mangoola cannot ascertain from the Notice the time at which the stoppage(s) will commence;

(c) Thirdly, Mangoola cannot ascertain from the Notice which employees at the Mine will participate in the stoppage(s) of work. In particular, Mangoola cannot ascertain from the Notice whether all members of the CFMEU intend to take the action and whether such action will be taken in one or more of the three Departments of the Mine; and

(d) Fourthly, Mangoola cannot ascertain from the Notice whether a particular stoppage will be for two hours, four hours, six hours or eight hours.

[22] In light of these issues and the safety risks referred to in paragraph [20] above, Mangoola contends that it is unable to take appropriate defensive action.

[23] The CFMEU submits that the Notice complies with s.414(6) of the Act because it specifies the day on which the action will start and the nature of the action, namely “four stoppages of work each of two hours in duration that may be consecutive”. The description in the Notice of “stoppages of work” uses ordinary industrial English to notify Mangoola of the proposed action.

[24] The CFMEU points to the fact that Mangoola did not object to the protected action ballot order at the time an application was made for it. The questions in that ballot included whether employees “authorise industrial action in the form of an unlimited number of stoppages of work, including consecutive stoppages of work, of two (2) hours in duration”.

[25] The CFMEU submits that, at the time of the hearing, which was less than 12 hours prior to the commencement of potential stoppages of work pursuant to the Notice, Mangoola had taken very few, if any, measures to prepare for the stoppages of work.

[26] The CFMEU emphasises that it is entitled to organise industrial action which will cause a degree of inconvenience and expense to Mangoola; indeed, that is the primary reason for taking the action, as part of its campaign to negotiate better terms and conditions of employment for its members.

[27] The CFMEU points to the fact that Mangoola has a range of policies and procedures in place at the Mine to deal with the risks associated with work stopping at the Mine, including in the event of a storm or adverse weather, at the end of a shift, during a meal break, as a result of an incident at the Mine, or in a simulated emergency situation at the Mine. The CFMEU contends that these policies and procedures, in which the employees are trained, are adequate to deal with the risks associated with a stoppage of work at the Mine.

Consideration

[28] Some of the evidence given by Mr Israel dealt with the inconvenience and loss of production which Mangoola would incur if the proposed action the subject of the Notice were taken. For example, a stoppage of work may prevent Mangoola from being able to blast overburden in one of the limited times permitted by the relevant regulators, which would cause delays in Mangoola’s well-planned production schedules. I have not had regard to such evidence in deciding whether the Notice complies with s.414(6) of the Act. That is because, as Justice Barker put it in Alcoa (at [35]):

“… s.414(6) should be construed with an understanding that under the FW Act the respondent has the right to engage in protected industrial action. Generally, the reason for industrial action is to cause a degree of inconvenience and expense to the employer as a legitimate bargaining tool. The fact that the applicant may suffer a loss of profits and its operation and staff may be inconvenienced is no reason of itself to find that a notice should as specific as the applicant in this case would like it to be.”

[29] However, having regard to the practical applied circumstances of the workplace at the Mine, as summarised in paragraphs [10] to [20] above, including the size of the workplace, the number of employees working at the Mine, the different Departments in which work is conducted, the integrated nature of the work, the fact that work is undertaken 24-hours a day, the nature of the undertaking (open cut coal mining), and the risks associated with such an undertaking, I am not satisfied that the Notice “specifies the nature of the action” within the meaning of s.414(6) of the Act. In my view, the Notice does not give Mangoola the opportunity to take appropriate defensive action, particularly to deal with the safety risks identified in paragraph [20] above.

[30] In order to prepare for all eventualities contemplated by the Notice, Mangoola would have to plan on the basis that stoppages of work would take place during each of the three shifts (or parts of shifts) on each day the subject of the Notice, 8 for between two and eight hours on each occasion, by CFMEU members in each Department across the Mine. Yet that is not what the Notice says. Given the nature of Mangoola’s operations at the Mine and the safety risks associated with stoppages of work without prior notice of the commencement times of such stoppages, some greater specification would be required to comply with s.414(6) of the Act.

[31] In the particular practical applied circumstances of the workplace at the Mine, the Notice would, in my view, satisfy the requirements of s.414(6) if it specified the commencement time(s) of the proposed action on each day specified in the Notice, but not the finishing time(s) of the proposed action. If the industrial action were taken for two or more consecutive periods on a particular day, it would not be necessary to specify in the notice the commencement time(s) of the consecutive period(s) or the precise number of periods (between one and four, in the case of the Notice) to be taken consecutively. Specifying the nature of the proposed action by inclusion of the commencement time of the stoppage in the notice would enable Mangoola to take appropriate defensive action to address the safety risks identified in paragraph [20] above because such risks predominantly arise at or shortly after the stoppage of work. Mangoola could take a range of defensive measures to address such risks if it was aware of the commencement time of the stoppages by, for example, delaying certain tasks, shutting down parts of the Mine, ensuring sufficient additional supervisors were working at the commencement of the action to manage the safety risks, and/or engaging additional labour hire employees, employees of contractors or employees who are not CFMEU-members to take over the task and make the workplace safe at the time work was stopped by members of the CFMEU, while at the same time giving the CFMEU and its members employed by Mangoola at the Mine the flexibility to deal with the dynamic nature of industrial disputes by making “decisions as to future steps … at short notice” 9, including the location(s) or area(s) in the Mine where the proposed action would be taken on a particular day specified in the Notice, and the duration of each stoppage within the range of two to eight hours.10 The CFMEU may, of course, elect to give a notice of a different kind, in which case it would be necessary to consider whether such a notice satisfies the requirements of s.414(6) of the Act.

[32] I do not accept Mangoola’s argument that the Notice is ambiguous on the basis that it does not specify whether “all”, or only a particular subset (eg members working in the CHPP) of, CFMEU members intend to take the proposed action. In my view, the Notice appropriately identifies the class of employees who intend to take the proposed action, namely “members of the Construction, Forestry, Mining and Energy Union who are employed by Mangoola Coal Operations Pty Ltd at Mangoola Open Cut mine”.

[33] I do not have any difficulty with the fact that the Notice permits a particular stoppage to be for two hours, four hours, six hours or eight hours. If Mangoola is given notice of the commencement time of a stoppage, I am satisfied in the industrial context of this case that Mangoola could take appropriate defensive action to deal with such a stoppage.

[34] The fact that Mangoola did not object to any of the questions in the proposed ballot of employees at the time the protected action ballot order was made does not, in my view, estop or otherwise prevent or preclude Mangoola from seeking a s.418 order on the basis that the Notice issued to it after the ballot was taken does not meet the requirements of s.414(6) of the Act.

[35] There is no question that Mangoola has in place a range of policies and procedures at the Mine to deal with the risks associated with work stopping at the Mine, including in the event of a storm or adverse weather, at the end of a shift, during a meal break, as a result of an incident at the Mine, or in a simulated emergency situation at the Mine. However, the existence of such policies and procedures does not, in my view, necessarily mean that Mangoola is able to take appropriate defensive action in the event of a stoppage of work without prior notice of the commencement time of the stoppage on a particular day. There is a distinction between (industrial action) stoppages of that kind and stoppages addressed by Mangoola’s policies and procedures. In the case of stoppages of work covered by Mangoola’s policies or procedures, the stoppages are either known and planned (eg during a meal break) or when they happen the relevant supervisor is aware of the situation and directs and manages the stoppage of work (eg in a storm) or is notified of the incident shortly after it happens and manages the situation (eg an incident at the Mine) with help from those involved in, or nearby to, the incident. In contrast, having regard to the size and number of employees working across the Mine, it may take some time for a supervisor to become aware that particular employees have stopped work pursuant to the Notice. The supervisor’s ability to manage the risks arising from the stoppage of work and the transportation of employees to crib huts or other locations may therefore be hindered. Further, the fact that employees have stopped work without prior notice and may not return to work prior to the end of their shift is likely, for the reasons set out above, to make it difficult for Mangoola to take appropriate defensive action.

[36] Mangoola took some steps prior to the hearing of the s.418 application on Thursday, 18 May 2017 to deal with potential stoppages of work from 19 May 2017. Those steps included making a presentation to crews of employees in relation to the need to park-up safely and follow safety requirements in the event of a stoppage of work during a shift and cancelling the leave of a supervisor who may be needed to work in the event of stoppages of work. However, I accept that Mangoola’s ability to prepare appropriate defensive actions to be taken if and when such stoppages of work took place pursuant to the Notice were hampered by the lack of specificity of the “nature of the action” in the Notice.

[37] In reaching my conclusion in this matter I have been mindful of Justice Barker’s caution against potentially supplanting “the role of the legislature in prescribing industrial behaviour” by requiring a party to “particularise the commencement and finishing time of the proposed action in a notice”. 11 In Alcoa, Justice Barker went on to accept, along with Goldberg J12 and Gilmour J13, that “there may well be an argument, particularly in the circumstances of a particular case, that in specifying the ‘nature of the action’, having regard to a particular action, it may in some cases be necessary to say something about the commencement and/or the conclusion times of the industrial action”.14 For the reasons set out in paragraphs [10] to [20] and [28] to [36] above, I am satisfied in the particular circumstances of this case that in specifying the “nature of the action”, it is necessary in the context of action proposed by the Notice to specify the commencement time(s) of the proposed action.

Conclusion

[38] For the reasons set out above, the Notice does not satisfy the requirements of s.414(6) of the Act. As a result, the proposed action the subject of the Notice does not meet the common requirements for industrial action to be “protected industrial action”. 15 It follows that I must make an order pursuant to s.418 of the Act that the industrial action stop and not be organised. An order to that effect was made on 19 May 2017.16

COMMISSIONER

Appearances:

Meehan, S R, of Counsel, for the Applicant.

Endacott, K, for the CFMEU.

Hearing details:

2017

Newcastle:

18 May 2017

 1   PR593090

 2   PR591217

 3   PR592800

 4   Exhibit A1

 5 ss.409(1)(c), 413(1) and (4), and s.414 of the Act

 6   [2013] FWCFB 3793

 7   Non-CFMEU members, CFMEU members who elect not to take action on that particular day, or employees of a labour hire company who work at the Mine.

 8   See paragraph [21(a)] above

 9   Davids Distribution Pty Ltd v NUW (1999) 91 FCR 463 at [84]

 10   An eight hour stoppage of work would be permitted by a notice specifying “four stoppages of work each of two hours in duration that may be consecutive”.

 11   Alcoa of Australia Limited v AWU [2010] FCA 278 (Alcoa) at [33]

 12   Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union v ACI Mould Manufacturing [1999] FCA 1859

 13   CSBP Ltd v Liquor, Hospitality and Miscellaneous Union of Workers (2007) 162 IR 81

 14   Alcoa at [34]

 15 ss.409(1)(c), 413(1) and (4), and s.414 of the Act

 16   PR593090

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<Price code C, PR593081>